- 37 -
that under the terms of the trust the income referred to must be
currently (at least annually) distributable to the spouse or that
she must have such command over the income that it is virtually
hers. Sec. 20.2056(b)-5(f)(8), Estate Tax Regs.
A determination of the nature of the interest that passes to
the surviving spouse is made pursuant to the law of the
jurisdiction under which the interest passes. Estate of
Nicholson v. Commissioner, supra at 672-673. In the instant
case, that is the law of New York. Although we will look to
local law to determine the nature of the interests provided under
a trust document, we are not bound to give effect to a local
court order that modifies that document after the Commissioner
has acquired rights to tax revenues under its terms. E.g.,
id. at 673. The law is clear that we are not bound by the action
of a State trial court, such as the Surrogate’s Court, that has
not been affirmed by the State’s highest court. Commissioner v.
Estate of Bosch, 387 U.S. 456 (1967).
“[I]n construing a will, the intention of the testator must
be our ‘absolute guide’”. In re Bieley, 695 N.E.2d 1119, 1122
(N.Y. 1998) (citations omitted); see In re Selner, 26 N.Y.S.2d
783 (App. Div.), affd. 39 N.E.2d 287 (N.Y. 1941). “The prime
consideration * * * is the intention of the testator as expressed
in the will. All rules of interpretation are subordinated to the
requirement that the actual purpose of the testator be sought and
Page: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 NextLast modified: May 25, 2011